Powers v. Planters National Bank & Trust Co. , 219 N.C. 254 ( 1941 )

Plaintiff instituted his action against defendant bank for wrongfully leasing and conveying to him certain property which he alleged had been used by one infected with the germs of pulmonary tuberculosis, without informing him of that fact. He alleged that in consequence thereof he contracted tuberculosis and suffered substantial injury to his health. Defendant was acting as agent for the owner in leasing the premises, and as administrator in conveying the personal property.

The defendant, among other defenses, pleaded the statute of limitations. It was therefore incumbent upon the plaintiff to show that his action was begun within the time limited by the statute, and not afterward. It was admitted that the lease and conveyance of the property described was made 30 November, 1934. The record shows that this action was begun 15 December, 1938.

To rebut the conclusion that the action was barred by the three years' statute of limitations, the plaintiff contended that the action was based on fraud — fraudulent concealment — and that the statute did not begin to run until discovery of the fraud. Johnson v. Ins. Co., ante, 202. But the complaint is bottomed on negligence. It alleges the breach of a duty on the part of the defendant in failing to inform him that the house had been occupied and the furniture used by a person suffering from tuberculosis. There was neither allegation nor proof of fraud. It is well settled that in an action for damages, resulting from negligent breach of duty, the statute of limitations begins to run from the breach, from the wrongful act or omission complained of, without regard to the time when the harmful consequences were discovered. 17 R. C. L., 763-775; 37 C. J., 881-882; Bank v. McKinney, 209 N.C. 668, 184 S.E. 506; Gordon v.Fredle, 206 N.C. 734, 175 S.E. 126; Daniel v. Grizzard, 117 N.C. 105,23 S.E. 93; Blount v. Parker, 78 N.C. 128; Sullivan v. Stout,120 N.J.L. 304;118 A.L.R., 211; Schmidt v. Merchants Despatch TransportationCo., 270 N.Y. 287, 104 A.L.R., 450.

In his complaint the plaintiff alleged that the negligence of defendant was "continuing negligence in that it created or maintained a nuisance." This view is not presented in the brief, nor it is supported by the evidence. The only suggestion of nuisance in the complaint is with reference to negligence. It was "negligence-born, and must, in the legal sense, make obeisance to its parentage," as was said by Seawell, J., inButler v. Light Co., 218 N.C. 116. The gravamen of the charge is negligence, not nuisance, and the proof is directed to a distinct breach of duty at a particular time. The alleged wrongful act or omission was the failure to give the plaintiff information at the time of the lease as to the previous use of the property. The cause of action accrued upon the breach of the obligation which the plaintiff alleges was imposed upon the defendant by virtue of its relationship to the property and to the plaintiff, and the statute of limitations began to run at that time.

Any action under the provisions of chapter 2, Public Laws 1923, relative to sanitation, would also be barred by the statute of limitations.

It was urged by the defendant that the evidence was insufficient to show that the alleged negligent act or omission on the part of the defendant was the proximate cause of the injury complained of, in view of the testimony that plaintiff, prior to the lease, had inactive tubercular infection, and the absence of substantial evidence as to the source of his present infection. It was pointed out that the case of MacRae v. Unemployment Com.,217 N.C. 769, which arose under the Workmen's Compensation Act, has no application to the facts here in evidence. However, we deem it unnecessary to determine this question, as we conclude that the motion for judgment of nonsuit was properly allowed.

Judgment affirmed.